John Duarte stands on his Paskenta Road land just south of Red Bluff that is part of the Duarte Nursery V. Army Corps of Engineers case that went before the US District Court in Sacramento Friday.
DN File Photo

Sacramento >> A Tehama County farmer facing heavy federal fines for plowing on his property southwest of Red Bluff sought Friday in the US District Court in Sacramento to delay a trial that had been set for Aug. 14.

In what was supposed to be the last pre-trial hearing, Jon Duarte and his attorney, Tony Francois of Pacific Legal Foundation, sought to have the trial moved to spring of 2018, which would allow the judge an opportunity to view Duarte’s wheat farm on Paskenta Road near Flores Avenue at the same time of year as the expert witnesses have inspected it, according to a press release from Pacific Legal. A spring 2018 trial date would also allow time for an important pending case currently in the Ninth Circuit, that could affect the outcome of the Duarte case, to be decided.

The suit revolves around property owned by Duarte Nursery and began with a 2012 visit by an Army Corps of Engineer Representative. Duarte Nursery Inc., head-quartered outside of Modesto and founded by Jim and Anita Duarte and their sons John and Jeff, was in the process of planting wheat at the time. A cease and desist notice alleging violation of the Clean Water Act was issued. Since then Duarte has been involved in a “complex legal battle to defend due process,” Francois previously said.

The pending trial for which the pre-trial hearing was held is to make a determination regarding penalties and fines.

Prior to the 10 a.m. Friday hearing, Duarte and his legal team held a press conference.

Francois started off the conference introducing Duarte who is a fourth-generation California farmer and the $2.8 million penalty the US Justice Department is seeking, which the justice department is seeking to use the Clean Water Act to justify, he said. However, the Clean Water Act specifically states that plowing to produce crops does not require a permit through the Army Corps of Engineers.

“This is unprecedented abuse of the Clean Water Act to persecute a farmer for merely plowing,” Francois said. “This is something the act allows without a permit. It should alarm every farmer and everyone engaged in agriculture in California and across America. The Justice Department is litigating this prosecution as a test case to eliminate the broad protections for farming that Congress, the people’s representatives, included in the Clean Water Act. Congress understands that if onerous, time consuming and expensive permitting requirements of the Clean Water Act are imposed on the nations farmers, we will not long have an adequate food supply.”

Francois said he, the Duarte family, his fellow Pacific Legal attorneys and co-counsel strongly urge the administration to take a close look at the facts, the legal issues and implications of the cases and to “assess it for what it really is.”

“It is an abusive hold over of the last administration that really should be abandoned,” Francois said. “Until that happens though, we will continue to litigate aggressively on behalf of John Duarte and Duarte Nursery’s rights. We are standing up for the rule of law and protection of farmers and citizens everywhere and will litigate these principles to the Supreme Court if necessary.”

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Duarte spoke next, thanking Pacific Legal Foundation for its support of himself and farmers everywhere in America.

“If this prosecution is successful, it will destroy my company,” Duarte said. “We employ 500 people at Duarte Nursery in Stanislaus County where unemployment rates are high and jobs are desperately needed as is with many parts of rural America.”

The federal representatives came onto the property and established what they have stated all along, which is that they did not deep rip and only tilled about four to seven inches deep, he said. The government specialists who came to inspect the property also established that the vernal pools still exist and are health and biologically intact just as they had when wheat crops were previously planted, however, the government is still seeking the $2.8 million penalty, Duarte said. If they can do it to his farming operation, it can happen to any farm in America.

“The same government agencies can go on any farm in American and shake down the growers for what they’re worth,” Duarte said. “The $2.8 million is not based on our environmental impact. The $2.8 million is a result of government financial accountants investigating my company in financial statements and me personally in my assets and deciding what they think we can pay.”

They can’t afford not only the $2.8 million the government is seeking through the trial, but the wetland mitigation amounting to about $20-30 million, he said.

“This is an abuse of government authority,” Duarte said. “If those protections of the Clean Water Act can’t stand and protect me now, they can’t stand to protect any farmer in America and the ability to construe new environmental legislation in the future to address future needs is gone. This is a constitutional crisis, it’s an abuse of government power and it’s a vindictive assault on my family and every farm family in America.”

Results from the hearing in Sacramento were not immediately available.